Appeal 2007-4240
Application 10/663,949
Claims 5 through 8 under 35 U.S.C. § 103(a) as unpatentable over
Ramanarayanan in view of Jensen (id. 7);
Claims 9 through 11 under 35 U.S.C. § 103(a) as unpatentable over
Ramanarayanan in view of Clemmer as evidenced by “INCO, Ltd.”2 (id. 8);
Claims 13 and 14 under 35 U.S.C. § 103(a) as unpatentable over
Ramanarayanan (id. 9); and
Claim 18 under 35 U.S.C. § 103(a) as unpatentable over Ramanarayanan in
view of Cable (id. 10).
The threshold issue in this appeal is whether, prima facie,
Ramanarayanan, Cable, Jensen, and/or the prior art acknowledged by
Appellants at page 3 of the Specification establish that Ramanarayanan
and/or Cable would have described to one skilled in the art, with respect to
anticipation, or would have suggested to one of ordinary skill in this art,
with respect to obviousness, a tubular solid fuel cell comprising at least,
among other things, a ceramic-metal fuel electrode having a microstructure
characterized by accumulated molten particle splats formed on at least a
portion of the electrolyte as specified by claim 1, the sole independent claim
on appeal, as the Examiner contends.
2 “INCO, Ltd.” is not listed on a PTO-892. “INCO, Ltd.” was first applied
along with Clemmer in the Office Action mailed November 15, 2004 at 7. A
copy of “INCOFIBER® Nickel Coated Carbon Fibers,” apparently from
www.incosp.com, is attached to the Answer as recorded in the USPTO
electronic file of this Application. This document does not appear to
disclose “NiGr” in Clemmer Table III, or correspond to “Nickel coated
graphite particles available from INCO” as relied on by the Examiner.
Answer 8-9; Clemmer 223. A copy of “INCO Special products” is present
in the NPL Document of November 15, 2004 which may correspond to
“INCO, Ltd.” as applied by the Examiner. In view of our disposition of this
appeal, we do not remand this Application to the Examiner for clarification.
See 37 C.F.R. § 41.50(a) (2007).
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